State ex rel. Woodbury Cnty. Antisaloon League v. Ross

• Decision Date: 02 July 1919
• Docket Number: No. 32632.,32632.
• Citation: 186 Iowa 802,173 N.W. 66
• Parties: STATE EX REL. WOODBURY COUNTY ANTISALOON LEAGUE v. ROSS ET AL.
• Court: Iowa Supreme Court

186 Iowa 802

173 N.W. 66

STATE EX REL. WOODBURY COUNTY ANTISALOON LEAGUE

v.ROSS ET AL.

No. 32632.

Supreme Court of Iowa.

July 2, 1919.

Appeal from District Court, Woodbury County; George Jepson, Judge.

Action in equity to enjoin a nuisance alleged to have been maintained by defendants other than Merkin, in maintaining, in the building in question, a place used for purposes of lewdness, assignation, and prostitution, and asking that a $300 tax be imposed against the real property. After a trial on the merits, the trial court found for the plaintiff as against the defendant Ross, and she was enjoined as prayed, and the decree ordered a sale of the fixtures, furniture, musical instruments, etc., and that the building be closed and kept closed for one year. The trial court refused the injunction as to the defendant Merkin, on the ground that the nuisance was without his knowledge or consent, and refused to impose the $300 tax. None of the defendants have appealed, and Merkin is the only appellee. The plaintiff appeals from so much of the decree as was against it. Reversed.John F. Joseph, of Sioux City, for appellant.

Henderson, Fribourg & Hatfield, of Sioux City, for appellee.

PRESTON, J.

[1] 1. Certain constitutional questions as to the power to impose the $300 tax are argued, but no such question was pleaded in the district court, and, so far as the record shows, such questions were not presented to, nor passed upon by, the trial judge. As before stated, the trial judge based his decision on other grounds. Even the arguments do not point out whether it is the state or federal Constitution that have been violated, nor the particular provisions thereof. State v. Wilson, 124 Iowa, 264, 99 N. W. 1060;Hopson v. Murphy, 1 Tex. 314;Case v. Ry., 166 N. W. 465. In Taft v. Alber, 171 N. W. 719, we passed upon the constitutionality of the statute in regard to imposing a $300 tax or penalty against property where cigarettes were sold, which may have some bearing, although perhaps the precise questions were not all passed upon in that case that are sought to be argued in this case. That case was decided at about the time, or soon before, the instant case was submitted, and is not cited by either party.

2. The appellee at first answered by general denial, and five or six months thereafter, and the day before the trial, answered further, denying that Evaline Ross occupied the premises as his tenant, and the question seems to have been contested in the trial in the district court by this appellee, as to whether she or some other person or persons were in the occupancy of the premises. The trial court found for the plaintiff on that question, and entered an injunction against Evaline Ross, and from such finding neither she nor the owner, Merkin, has appealed, nor does Merkin complain of the decree ordering his building closed for a year. The question as to the sufficiency of the evidence to sustain such finding is argued. There is a conflict in the testimony on this point; but, under the circumstances, we do not feel called upon to set out the testimony. From a reading of it, we are satisfied with the finding of the trial court, on this proposition.

[2][3] 3. Whether the owner, Merkin, had notice or knowledge of the character of the premises kept by Evaline Ross, is disputed. Merkin himself, the party against whom it is sought to impose the tax against his property, testifies that he did not have such knowledge. Without attempting to set out all the evidence, enough will be referred to, to show that the trial court was in error as to this feature of the case.

The petition was filed June 8, 1917, and the trial took place February 20, 1918. Witness McMillan testifies that he was going by the house May 24, 1917, and was solicited by the two women, Ross and Taylor, one being at the window and the other at the door, and they both asked him if he wanted to come in and go to bed with them, and stated what they would charge. Later in the same day, he went back with a patrolman, at which time the two women and a man named Kline were arrested. Kline was partly undressed, and the woman Taylor had on only a suit of underclothes, and the other girl only a house apron. He states that the general reputation of the place was that it was a place where prostitution, assignation, and lewdness were carried on; that, at the time of the trial, a girl by the name of Franklin was there and running the place, and that she solicited the witness the same afternoon at a house further up the street; that the Franklin girl and another girl were in the house a few days before the trial. Police Officer White testifies that he had caught the girls, several times, tapping on the window at the place in question, and he went in and warned them about it, but it did no good, and he reported them, and that they went down and raided the place the same day that McMillan was there. He says the place was vacant at the time of the trial, and the occupant Franklin moved out two days before the trial; that the Franklin woman is a prostitute; that she is a colored girl; witness thinks the women Ross and Taylor vacated in September; that he served notice on them, and it was about three days after...